28 June 2014

Critical Legal History

'After Critical Legal History: Scope, Scale, Structure' by Christopher L. Tomlins in (2012) 8 Annual Review of Law and Social Science outlines 
a course for U.S. legal historical writing distinct from the ascendant mode of the last thirty years, generally known as “critical legal history” or “critical historicism.” Critical legal history is premised on the conventional historical strategy of exploring the nature of an object by situating it in an appropriate context and examining the conjunction between object and context. In CLH’s case the object is law and the context is polity, economy, or society, or more usually a realm of action that is a mixture of all three. CLH is also premised on the further, theoretical, contention that whatever the realm of action in relation to which law is situated, the outcome is the same: indeterminacy marked by contingency, alternative possibilities, “paths not taken.” In this regard, CLH shares in the general turn in the qualitative social sciences and humanities toward “complexity.” The results of this contextualizing or relational approach have been empirically rich but are inevitably marked by an abandonment of authoritative causal explanation (metatheory) for thick description. This essay lays out an alternative to CLH’s parsing of relations between law and what is extrinsic to it, by exploring the explanatory potential of allegory, by which what are imagined as distinct become the same. Allegory is strikingly “visual” in conception – figurative, emblematic. Wycliffe called it “ghostly understanding.” I explore the potential of allegory along three optical dimensions – scope (appearance), scale (perspective), and structure (constellation) – that together produce what Walter Benjamin called “the dialectical image,” a non-relational theory of representation with striking historical applications.
Tomlins comments
Since the early 1980s, critical legal history (henceforth CLH) has been a highly influential mode of legal historical scholarship in the United States. Its rise has coincided with, and partially explains, growing interest in historical explanations of legal ideas and institutions among American legal academics at large (on which see Tomlins 2011a). CLH is radically historicist in orientation: historicist, in that it places great emphasis upon the embeddedness of legal concepts in social and historical contexts; radically historicist, in that it simultaneously emphasizes the plurality of those contexts, hence the contingency of all relations between concept and context (Gordon 1984, 100; 1997, 1029). CLH strongly resists those functionalist or materialist explanations of law that read legal concepts as responses to or determined by the contexts in which they are embedded. Over the years it has also resisted, though less strongly, explanations of law that attribute to legal concepts a “constitutive” capacity to organize the social and the historical. Not only are legal concepts far too plural in practice and application to have consistent, hence predicable, effects, they are indeterminate in essence because founded on contradictions inherent in human existence (Gordon 1984, 114-16). This notwithstanding, CLH has shown some propensity to accept the argument, now prevalent in socio-legal studies overall, that law and its contexts are “mutually constitutive”; but rather than granting this argument causal resonance it tends to use the argument to reference the immanence – the “blur” – of legal concepts in social life, hence the impossibility of achieving meaningful separation between the social and the legal such that causal statements might be made about their relationship. Their relationality is, rather, resolutely complex (see generally Tomlins 2007a, 56-65).
Like most orthodoxies, CLH originated as a mode of subverting and displacing a prior orthodoxy, which for want of a better word one can term “externalism,” or in CLH’s own terms “legal functionalism” (Gordon 1984, 58). The rise of the new critical orthodoxy did not by any means eliminate all vestiges of the predecessor: among professional historians interested in law, for example, functionalist explanations of the relationship between law and its context remain viable (Edwards 2012). Nevertheless it is no exaggeration to state that for thirty years CLH has supplied American legal historians with the clearest guide to what their field of study can achieve, and the clearest statement – both practical and philosophical – of how to go about achieving it.
In this essay I outline a distinct statement of theory for the practice of legal history. In what follows I first supply a short history of CLH and a critique of its central claims. I then situate this critique in a more general critique of current modes of critical theorizing and their product, and point to the availability of means to escape from what I contend is a blind alley. I choose the metaphor deliberately, because the course that I describe is one founded on the exploration of seeing. In place of relational concepts that rely on situating law in historical contexts for purchase on its meaning and effect I emphasize observation – the visualization of law as object of contemplation. For as Irus Braverman has put it, in order to be effective, law “must be … seen” (Braverman 2011, 174; and see Wilf 2011,; Welke 2011; Goodrich 2011; Tomlins and Comaroff 2011).
To that end I develop three points of conceptual purchase: scope, scale, and structure. By scope, I mean to reference law’s role in bringing about what James Scott calls the “legibility” – the visibility – of its subjects, and in defining the field of vision in which the subject appears (Scott 1998, 2-3, 183-4). By scale, I mean to refine legibility as such by emphasizing the effects of variation on what is seen: that is, variation among “scopic regimes” – modes of seeing (Jay 1988); variation in the standpoint (for example, the global, the national, the local), from which scopic regimes operate (Santos 1987); and the variations in perspective that scopic regimes employ (Riles 1995). By structure, finally, I mean a way of making scope and scale elements of the same theoretical conjuncture. Specifically, I invoke Walter Benjamin’s conception of constellation, which offers the means to place history at the very center of a theorization of law’s visuality by enabling us to formulate historical meaning imagistically (Tomlins 2011b, 245-6).
Constellation stands against historicism. It stands for the synchronicity not of objects in time but of objects with time, notably with the time of the observer, who (as Annelise Riles has emphasized) occupies a point of particularity (Tomlins 2010, 203; Riles 1995, 48). The point is made in Benjamin’s essay on Eduard Fuchs: “[A]ny consideration of history worthy of being called dialectical…[requires the researcher] to abandon the calm, contemplative attitude toward his object in order to become conscious of the critical constellation in which precisely this fragment of the past finds itself with precisely this present” (Benjamin 2002b, 262). As this suggests, Benjamin’s materialist dialectics were devoted not to theoretical mediation of relations among forces underlying the surface of things, but to the construction of perceptible representations – “thread[s] of expression” – that created images by conjoining moments (Benjamin 1999, 460). As this suggests, and as we shall see, Benjamin’s materialism was fundamentally metaphysical in imagination, standing apart from the intellectual traditions that have dominated modernism. Precisely that separation is what now recommends it.